Citation Nr: 9824208
Decision Date: 08/11/98 Archive Date: 07/27/01
DOCKET NO. 96-37 068 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office in
Huntington, West Virginia
THE ISSUES
1. Entitlement to service connection for chronic obstructive
pulmonary disorder due to mustard gas exposure.
2. Entitlement to an increased (compensable) rating for
residuals of a right chest injury.
3. Entitlement to an increased rating for post traumatic
stress disorder, currently evaluated as 30 percent disabling.
REPRESENTATION
Appellant represented by: [redacted], niece of
veteran
WITNESSES AT HEARINGS ON APPEAL
Appellant and his niece
ATTORNEY FOR THE BOARD
Debbie A. Riffe, Associate Counsel
INTRODUCTION
The veteran had active service from June 1943 to December
1945. In a January 1946 rating decision, service connection
for an anxiety disorder was granted and a 10 percent
evaluation was assigned. In a June 1952 rating decision,
service connection for residuals of a right chest injury was
granted and a noncompensable evaluation was assigned. In a
November 1983 rating decision, a 30 percent rating was
assigned for the veteran's service connected anxiety
disorder.
This appeal arises from a June 1996 rating decision of the
Huntington, West Virginia Regional Office (RO), which denied
service connection for chronic obstructive pulmonary disorder
(COPD) due to mustard gas exposure or any disease or injury
during military service and denied increased ratings for
residuals of a right chest injury and post traumatic stress
disorder (PTSD) which was previously diagnosed as an anxiety
disorder.
In May 1998, the veteran's representative appeared and
testified on behalf of the veteran at a hearing in
Washington, D.C., which was conducted by Steven L. Cohn, who
is the member of the Board of Veterans' Appeals (Board)
responsible for making a determination in this case.
The Board also notes that the issue of clear and unmistakable
error in a prior 1983 rating decision denying service
connection for COPD and evaluating the veteran's service
connected PTSD and residuals of a right chest injury has been
raised. The RO denied this claim in an August 1997 rating
decision. It was noted at the May 1998 hearing that an
appeal from this rating decision had not been perfected and
was not before the Board for consideration. In addition,
this issue is not inextricably intertwined with the issues
currently on appeal, it is referred to the RO for further
appropriate consideration. See Harris v. Derwinski, 1 Vet.
App. 180 (1991); Kellar v. Brown, 6 Vet. App. 157 (1994).
CONTENTIONS OF APPELLANT ON APPEAL
It is contended by and on behalf of the veteran that due to
exposure to mustard gas during training exercises in service
he incurred COPD. It is also maintained that increased
ratings are warranted for the veteran's residuals of a right
chest injury and PTSD.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the veteran's claim for entitlement to
service connection for COPD due to mustard gas exposure. It
is also the decision of the Board that the preponderance of
the evidence is against the veteran's claims for an increased
rating for residuals of a right chest injury and for PTSD.
FINDINGS OF FACT
1. All available relevant evidence necessary for an
equitable disposition of the veteran's appeal has been
obtained by the RO.
2. The record does not show that the veteran had full body
exposure to mustard gas in service.
3. There is no competent evidence that the veteran's COPD
was a result of mustard gas exposure in service.
4. There is no objective medical evidence of any current
residuals from the veteran's service connected right chest
injury.
5. The veteran's PTSD is manifested by complaints of regular
nervousness, some temper and sleeping problems, and
occasional nightmares and flashbacks of World War II;
clinical findings demonstrate normal and relevant speech,
intact memory, fair and good judgment, intellectual
functioning in the average to above average range, euthymic
mood, broad affect, a contained impulse control, and
orientation to person, place, and time. The clinical
findings are productive of no more than definite social and
industrial impairment according to the rating criteria in
effect prior to November 7, 1996, and result in no more than
occupational and social impairment with occasional decrease
in work efficiency and intermittent periods of inability to
perform occupational tasks according to the criteria
effective since November 7, 1996.
CONCLUSIONS OF LAW
1. The veteran's COPD, claimed as being due to mustard gas
exposure, was not incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1154, 5107 (West 1991); 38 C.F.R.
§§ 3.303, 3.316 (1997).
2. The veteran's residuals of a right chest injury is
noncompensable, according to regulatory criteria.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.1, 4.2,
4.7, 4.10, 4.118, Diagnostic Code 7805 (1997).
3. The veteran's PTSD is not more than 30 percent disabling,
according to regulatory criteria. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.129, 4.130, 4.132,
Diagnostic Code 9411 (1996, and revised effective November 7,
1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection for COPD Due to Mustard Gas Exposure
and
Increased Rating for Residuals of a Right Chest Injury
Service medical records show that on a June 1943 enlistment
physical examination the veteran's lungs were clinically
evaluated as normal, and a chest x-ray was normal. In July
1944, the veteran sustained a moderately severe pulmonary
contusion to the right chest when a "jeep" ran over his
chest. Chest x-rays in July 1944 were negative but indicated
some fluid in the right base. Other July 1944 records
indicate diminished breath sounds over the right lower
posterior chest and some density scattered over the right
lung with slight obliteration of the right costophrenic angle
on x-ray. The record also noted that there was some evidence
of hemothorax but no rib fractures. The veteran was
transferred to a hospital for examination for possible
internal injuries. An August 1944 record indicates that the
front wheel of the jeep passed over the veteran's chest and
that at the time he had considerable pain and difficulty in
breathing but was not unconscious. After transfer to a
hospital, the veteran began to occasionally cough up small
amounts of bright red blood, but his chest pain was no longer
severe. A record notes that there were mottled areas seen in
the right lung on x-ray. On examination, there was very
slight bluish discoloration over the right pectoralis major
and around the right side of the chest. There were small
crusted-over lacerations over the left chest posteriorly.
Progress notes in August 1944 indicate that the veteran still
expectorated small amounts of old blood and that there was no
pain. On a December 1945 separation physical examination,
there were no musculoskeletal defects noted, and the
veteran's lungs were clinically evaluated as normal. A chest
x-ray revealed no significant abnormalities, and the only
scar noted was over the sacrum which was due to the excision
of a pilonidal cyst in July 1945.
On an April 1947 VA examination, an x-ray of the chest and
heart was negative. There were no complaints or diagnoses
referable to the chest or lungs.
On an April 1949 VA examination, the veteran reported that he
injured his left chest in January 1949 when he fell into a
machine while working at a construction company. He
complained of pain and soreness of his chest and shoulders.
A chest x-ray showed a partial resection of the anterior end
of the left 4th rib, some blunting of the left costophrenic
angle, no parenchymal infiltration of the lung fields, and a
heart and aorta which were normal in appearance. There was
no diagnosis referable to the lungs.
On an April 1951 VA examination, the veteran reported that
while working as a carpenter he fell into a gear wheel and
received severe chest and heart injuries. He also reported
his chest injury in service when he was run over by a jeep.
He complained of pain in the left chest since the 1949 chest
injury. On examination, the respiratory system was clinical
evaluated as normal. A chest x-ray revealed that the left
diaphragm was mildly deformed by pleural adhesions and that
the lungs were normal in appearance. There was no diagnosis
referable to the lungs.
On a May 1952 VA examination, the veteran complained of pains
in his chest, especially the left side. A chest x-ray
revealed that the left diaphragm was slightly elevated with
evidence of pleural adhesions and that the lung fields were
clear. On examination of the respiratory system, there was
definite limitation of motion over the left chest with a
deformity over the entire left lateral chest. The percussion
note was impaired over the left base. Auscultation revealed
somewhat distant breath sounds over the left base. There
were no definite rales heard. The right lung appeared clear
to auscultation and percussion. The diagnoses included
traumatic deformity of the left chest with extensive healed
scarring and pleurisy on the left secondary to trauma.
In a June 1952 rating decision, the RO granted service
connection for the veteran's residuals of a right chest
injury and assigned a noncompensable evaluation as no right
chest pathology was detected on examination. The RO did not
provide a diagnostic code for the veteran's service connected
disability.
On an April 1960 VA examination, the veteran complained that
he had a pain in the right side of his back and that it hurt
when he breathed. A chest x-ray revealed that the left
diaphragm was elevated with adhesions in the costophrenic
sinus and that the heart and lungs were within normal limits.
On examination of the respiratory system, the veteran denied
cough and expectoration. The mobility of the chest was full
and equal with the exception of the removal of the 4th left
rib. The lung fields were normal to palpation, percussion,
and auscultation. On examination of the musculoskeletal
system, scarring was noted on the back of the neck, left
chest, and left axilla. The diagnoses included scars on the
posterior neck, left axilla, and anterior left chest wall,
and no physical findings in the chest on auscultation,
palpation, or percussion.
In a May 1960 rating decision, the RO continued the
noncompensable evaluation for the veteran's residuals of a
right chest injury as there was no right chest pathology
shown on examination. The right chest injury in service and
the left chest injury following service were noted. The RO
determined that there was no medical evidence in the record
to indicate that scarring in the back of the neck and in the
left upper chest and shoulder areas was due to the jeep
accident in service. No chest disease was shown on current
examination. The RO evaluated the veteran's residuals of a
right chest injury under Diagnostic Code 7805, for scars, of
the VA's Schedule for Rating Disabilities.
In medical records from Dr. Richard Slack, dated in March
1983, the veteran complained of chest pains and occasional
shortness of breath. He reported injuries to his chest from
a jeep accident in service. There was no mention of mustard
gas exposure. The diagnoses included a chest deformity on
the left. There was no diagnosis referable to the lungs.
In April 1983, VA outpatient records dated from October 1982
to February 1983 were received. In February 1983, there was
a diagnosis of chronic bronchitis.
In an April 1983 medical statement, Jerry Edens, M.D.,
indicated that he had followed the veteran since November
1979 and that the veteran has been treated for a number of
conditions, including bronchospastic lung disease,
bronchitis, and chronic obstructive lung disease.
On a May 1983 VA examination, the veteran complained of chest
pain and breathing difficulties. His injuries from a jeep
accident in service and from an industrial accident in 1949
were noted. There was no mention of mustard gas exposure.
The veteran reported shortness of breath on exertion. On
examination of the respiratory system, it was noted that the
veteran had changes secondary to pulmonary emphysema with a
barrel-shaped chest and a marked decrease of breath sounds
bilaterally. There was no rhonchi heard. A chest x-ray
revealed bilateral pleural thickening in the region of the
costophrenic angle, minimal pulmonary emphysema, and minimal
tortuous aorta. The diagnoses included pulmonary emphysema
and chronic bronchitis by history.
In January 1992, VA records dated from January 1991 to
December 1991 were received. Outpatient records show that
the veteran was variously diagnosed with COPD, acute
bronchitis, and upper respiratory infection.
In an April 1992 rating decision, the RO denied an increased
rating for the veteran's residuals of a right chest injury
under Diagnostic Code 7805 of the VA's Schedule for Rating
Disabilities on the basis that VA outpatient records did not
indicate treatment or complaints of a right chest injury.
The RO also denied service connection for a chronic lung
condition.
In January 1993, a VA hospital summary was received showing
that the veteran was admitted in November 1992 for complaints
of increased shortness of breath with productive cough. The
diagnosis was exacerbation of COPD.
In a June 1995 statement, the veteran requested that his
claim for service connection for an upper respiratory
condition be reopened. He also requested that his service
connected respiratory disability be reevaluated, stating that
his condition was growing worse.
In July 1995, VA outpatient records dated from December 1992
to June 1995 were received. The records show that the
veteran complained of cough, congestion, expectoration,
wheezing, shortness of breath, and difficulty breathing. He
was diagnosed and treated for COPD, bronchospastic episodes,
bronchitis, and upper respiratory infection. A November 1992
chest x-ray shows that the contour of the thorax was
accentuated by a dorsal kyphosis with a compression fracture
of a mid-thoracic vertebra. There was blunting of both
costophrenic angles. The heart and great vessels were
unchanged. A December 1992 chest x-ray shows that there was
some scarring at the right lateral costophrenic angle. A
June 1993 chest x-ray reveals an old compression deformity in
the lower thoracic spine. An August 1994 chest x-ray shows
little change since June 1993 and an increase in the kyphotic
curvature of the dorsal spine.
In September 1995, the veteran submitted documents in support
of a claim for exposure to "radiation". The documents
included excerpts from various issues of DAV Magazine which
concerned the VA's final rules on service connected
conditions for veterans exposed to mustard gas. Also
received was a copy of a photograph of the veteran's basic
training unit, Battery B 8th Antiaircraft Training Battalion
at Fort Eustis, Virginia dated in July 1943.
In a November 1995 letter, in response to an October 1995 RO
letter requesting additional information regarding exposure
to radiation, the veteran clarified that his claim was for
residuals of exposure to mustard gas and Lewisite,
specifically COPD.
In a December 1995 statement, in response to a November 1995
RO letter requesting additional information regarding his
claim, the veteran indicated that his claim was for a variety
of pulmonary disorders, to include COPD. He indicated that
his COPD began in the late 1940s and had worsened since then.
He provided no specific information concerning mustard gas
exposure. Attached to his statement was a duplicate excerpt
from an issue of DAV Magazine concerning the VA's final
rules on service connected conditions for veterans exposed to
mustard gas and an excerpt from another publication, The
American Legion, concerning mustard gas tests during World
War II. By letter in January 1996, the RO requested specific
information involving the veteran's participation in tests
involving mustard gas. He responded in the same month,
indicating that the RO should refer to his December 1995
statement.
In May 1996, VA records dated from December 1995 to April
1996 were received, indicating that the veteran was variously
diagnosed with COPD and bronchitis.
On a May 1996 VA examination, it was noted in the veteran's
history that he had been in treatment for the last five or
six years on different inhalers and nebulizers and in recent
therapy regarding his throat caused by gas exposure in World
War II. A chest x-ray revealed an increase in the kyphotic
curvature of the dorsal spine with anterior wedging of some
of the mid-dorsal vertebral bodies. It was noted that the
chest was unchanged since December 1995. The x-ray
impression was COPD bilaterally and increase in the kyphotic
curvature of the dorsal spine. The diagnosis on examination
was COPD of undetermined origin. During a subsequent VA
psychiatric examination in May 1996, the veteran reported
that he still suffered from residuals of a jeep accident in
service, to include lung problems. He also reported that he
was exposed to mustard gas at Fort Eustis. He described his
other training maneuvers but did not report mustard gas
exposure at any other site than Fort Eustis.
At a January 1997 hearing before a hearing officer at the RO,
the veteran testified that he believed that his respiratory
problems were the result of mustard gas and Lewisite exposure
during basic training at Fort Eustis in July 1943 because he
had been unable to breath properly ever since service. He
stated that in basic training gas canisters were thrown into
the room and that the soldiers had to place masks onto their
faces before the gas reached them. The veteran stated that
some of the soldiers made it through the test but died later
as a result of exposure to the mustard gas. He related that
sometimes he could not get his mask on in time. He stated
that he never received blisters or treatment at that time but
that his eyes watered and his throat burned. He indicated
that he gave a sworn statement that he would not divulge to
others that he underwent mustard gas testing. The veteran
indicated that he was advised that the tests he underwent
involved mustard gas. He stated that the mustard gas created
skin problems and that some of the soldiers who were sent to
fight in World War II had skin that had never healed up from
the testing. The veteran stated that he did not know if he
was ever exposed to mustard gas when he was sent to France
during the war. The veteran also testified that he believed
that his chest injury in service contributed to his lung
problem. He indicated that he was not having problems with
the scars for which he was service connected. He asserted
that he had had broken and cracked ribs from the inservice
injury.
On a January 1997 VA examination, the veteran reported that
since his exposure to mustard gas he had been treated for
emphysema or COPD which initially began in 1945. (During a
VA psychiatric examination earlier that same month, the
veteran reported exposure to mustard gas during basic
training. On the psychiatric examination, he also described
training at Fort Polk before Christmas, and he did not report
mustard gas exposure during this period of training.) It was
noted that the veteran had not been exposed to asbestosis,
coal dust, tuberculosis or smoking during his lifetime. It
was also noted that the veteran was run over by a jeep in
service and that he apparently cracked or fractured his ribs
and lacerated the posterior aspect of his scalp. (The actual
service medical records show no rib fractures in service.)
The veteran reported that he had coughed up blood after the
injury but that he had since had no return of hemoptysis. It
was noted that the veteran reported that he was not scarred
by the jeep accident except for the posterior aspect of the
neck. (The RO in its May 1960 rating decision denied service
connection for scarring of the back of the neck.) The
veteran's industrial accident in 1949 was noted, in which he
fell into the gears while working around a coal temple. He
had a portion of his left rib cage torn open with the gears
dragging or pulling his left 5th rib out of his chest, and
the skin of the anterior portion of his left chest was torn
away from his body. The industrial accident caused a
complete loss of the 5th rib on the left and fairly
significant scarring across the left chest to the left
axilla. On examination, the veteran had severe kyphosis of
the thoracic spine and an indentation on the left anterior
rib cage. There was no scarring on the right side of the
chest. He had inspiratory and expiratory wheezing
bilaterally. In the assessment, the examiner stated that the
veteran had COPD. The examiner questioned whether the
veteran had truly been exposed to mustard gas in 1943 and
stated that the fracturing of the ribs in service did not
appear to be impairing his breathing function now. It was
opined that the veteran's COPD was most likely related to his
advancing age and further aggravated by his severe kyphosis
of the thoracic spine, which also was associated with his
aging and not the jeep accident.
In a January 1997 letter, the veteran's wife indicated that
the veteran has had the same cough and lung problems ever
since they were married in June 1947. She indicated that the
veteran stopped several times to get his breath in order to
walk across the floor or to go up the stairs. She indicated
that the veteran had served with the 489th AAA (AW) SP
Battalion, Company B, before he left the United States and
during service in Europe where he was attached to the Fourth
Armored Division. She stated that she had read everything
she could about diseases associated with mustard gas and
maintained that mustard gas was used in the veteran's
training.
On an April 1997 report of contact form, the RO indicated
that it had made a telephone call to determine if the veteran
was on the list of those who participated in mustard gas
testing. In May 1997, the RO was informed that the veteran
was not on the list for mustard gas testing.
By letter in May 1997, the RO requested information from the
U.S. Army Chemical and Biological Agency as to whether the
veteran had participated in mustard gas tests during basic
training in July 1943 while at Fort Eustis, Virginia when he
was assigned to the 8th Antiaircraft Training Battalion. The
RO informed the agency that the veteran used a gas mask and
was in a gas chamber.
In May 1997, a letter from U.S. Army Chemical and Biological
Defense Command (CBDCOM) was received, indicating that it was
unable to assist the RO in researching the veteran's claim.
As a "possible aid" in evaluating the veteran's claim of
exposure to mustard gas during World War II, CBDCOM provided
some information. It stated that it had no records that
indicated Fort Eustis conducted mustard gas testing. It also
indicated that the veteran may have been referring to his gas
chamber training given during basic training and at other
times during a soldier's military career. It was common
practice to reinforce the gas chamber training, prior to a
soldier being shipped overseas. Tear gas and chlorine were
used in the gas chamber, which caused skin irritation,
nausea, and/or vomiting in some individuals when the mask was
removed or lifted from the face. It was noted that soldiers
may have entered the gas chamber as many as four times during
training and that the chamber was usually a small wooden
building or sometimes a tent.
In November 1997, additional and duplicative records were
received in support of the veteran's claim. The records
included a medical statement from a VA doctor, dated in
November 1993, which indicated that the veteran had severe
lung disease and was prone to recurrent infections
(pneumonia). Duplicates of the June 1996 rating decision and
August 1996 statement of the case were received, which were
annotated with comments to the effect that all records
regarding the veteran's basic training involving mustard gas
in closed chambers had been destroyed and that the veteran's
right chest injury affected his lungs. A copy of an August
1997 RO notification letter was annotated with the comment
that the veteran had a large black spot on the right lung as
noted on his discharge papers. Also submitted was a
certification from the Fourth Armored Division Association
that the veteran served in the division as a member of the
489th AAA-AW Bn. (SP), Company "B".
In January 1998, additional records were received in support
of the veteran's claim. These records included a medical
statement by a VA doctor, dated in November 1997, which
indicated that the veteran's COPD had worsened over the past
year and that he required oxygen at all times. The VA doctor
stated that the veteran gave him a history of significant
exposure to mustard gas in service and that mustard gas had
been known to result in significant respiratory problems
including emphysema and bronchitis. Also received was a copy
of the veteran's chemical warfare pocket reference card that
he carried during service and a copy from the Fourth Armored
Division History Book describing the training undergone by
soldiers.
At a May 1998 hearing before the undersigned member of the
Board, the veteran's representative, who is also the
veteran's niece, waived RO consideration of the records that
were previously received in support of the veteran's claim
after the claims folder had been forwarded to the Board (T-
3). She stated that the veteran was trained at several
sites, some of which were noted as being a site where mustard
gas was used for experimentation with soldiers. She stated
that it was the veteran's claim that he was affected by some
of these tests which were conducted in contained areas. She
indicated that in addition to Fort Eustis the veteran was
trained in Camp Poke [Polk], Louisiana on small weapons
systems and in the December 1943 Louisiana maneuvers during
which mustard gas was used. She stated that the articles
regarding mustard gas exposure in her possession did not
identify the veteran specifically as having exposure but that
he was a part of the training group that was exposed. She
referred to a pocket reference card about exposure to
chemical warfare given to the veteran during training and
medical statements dated in November 1993 and November 1997
by VA doctors describing the veteran's condition, all of
which are of record. She asserted that the veteran has had
problems as a result of his service ever since she has known
him. She stated that the veteran had always had breathing
problems and that he lagged behind in the physical tasks of
everyday living. She indicated that there was x-ray evidence
of tire tracks and scarred tissue on the veteran's right lung
from the jeep accident in service. She indicated that x-rays
taken as late as 1997 by the VA show malformations of the
right lung and mottling which was also shown by x-ray in
service. She stated that the veteran has had numerous lung
infections over the years and had a very poor right lung
condition at present. She argued that these chest problems
were attributable to the chest injury in service. She also
argued that the veteran's respiratory disorder was a
combination of a residual of the chest injury and mustard gas
exposure.
In July 1998, records were received in support of a claim to
advance the veteran's case on the docket due to serious
illness. A medical statement from a VA doctor, dated in July
1998, indicated that the veteran was terminally ill and that
his diagnoses included COPD. Letters from the veteran's
daughter urged that the veteran's claim be granted. A
newsletter from an unidentified source discussed the unit
history of the 489th AAA AW Bn (SP). The newsletter was
annotated with comments that the veteran was trained at Fort
Eustis and was then sent to Fort Bliss, Texas to the 489th
for special basic training prior to even further training in
Louisiana.
A. Claim for Service Connection
Initially it is noted that the veteran's claim is well
grounded within the meaning of 38 U.S.C.A. § 5107(a). That
is, he has indicated that he was exposed to mustard gas, and
he has a diagnosis of COPD which has a presumptive nexus to
mustard gas exposure. Under such circumstances his claim is
plausible. The Board is satisfied that all reasonable
attempts have been made to obtain all relevant evidence and
that no further assistance is required to comply with the
duty to assist as mandated by 38 U.S.C.A. § 5107(a).
Under applicable criteria, service connection will be granted
for disability resulting from personal injury suffered or
disease incurred in or aggravated during service.
38 U.S.C.A. § 1110.
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service, see 38 C.F.R. § 3.303(d) (1997); and for
a disability which is proximately due to or the result of a
service connected injury, see 38 C.F.R. § 3.310 (1997).
38 C.F.R. § 3.316(a)(2) provides that service connection will
be granted where there has been full-body exposure to
nitrogen or sulfur mustard or Lewisite during active military
service together with the subsequent development of a chronic
form of laryngitis, bronchitis, emphysema, asthma or chronic
obstructive pulmonary disease. Service connection will not
be established under this section if the claimed condition is
due to the veteran's own willful misconduct or there is
affirmative evidence that establishes a nonservice-related
supervening condition or event as the cause of the claimed
condition. 38 C.F.R. § 3.316(b).
In this case, the veteran has argued that he was exposed to
mustard gas during training exercises in service. He
testified in 1997 that he underwent mustard gas testing
during basic training at Fort Eustis, Virginia in July 1943.
He testified that he was told that the tests involved mustard
gas and that he gave a sworn statement at the time that he
would not divulge to others the nature of the testing. The
service medical records show that the veteran sustained a
pulmonary contusion on the right from an injury in 1944 and
that at separation in 1945 his lungs were clinically
evaluated as normal. Following service, there were no
respiratory complaints on VA examination in April 1947.
Postservice medical records in 1949 show that the veteran
complained of chest pain on VA examination; however, the
examination revealed that the veteran had injured his left
chest in an industrial accident in 1949 and that there was no
diagnosis referable to the lungs. In fact, postservice
records do not show any evidence of a respiratory disorder
until 1983 when the veteran was diagnosed in VA outpatient
records with chronic bronchitis. Dr. Edens stated in 1983
that he had followed the veteran since 1979 and had treated
the veteran for a number of disorders including
bronchospastic lung disease, bronchitis, and chronic
obstructive lung disease. VA records from 1991 to 1995 show
that the veteran was variously diagnosed and treated for
COPD, bronchitis, and upper respiratory infection. The most
recent medical evidence shows that from 1996 to 1998 VA
doctors have diagnosed the veteran with COPD.
As noted above, there are several provisions by which the
veteran may be entitled to service connection for his COPD.
Under 38 C.F.R. § 3.316, if a veteran develops chronic
bronchitis, asthma, or COPD, and there is no other
intervening cause, service connection may be granted if the
record shows that the veteran had full body exposure to
mustard gas. In this case, the veteran has a diagnosis of
COPD. Thus the critical point to be determined is whether
the evidence shows full body exposure to mustard gas. In
making such a determination, it must be kept in mind that if
the evidence is in equipoise on this point the veteran is to
be given the benefit of the doubt. If the preponderance of
the evidence favors the conclusion that he did not have full
body exposure, the claim must be denied. 38 U.S.C.A.
§ 5107(b).
In this regard, the only evidence tending to show the veteran
was exposed to mustard gas during service is his own
statement and those statements of his wife and
representative. Service and postservice medical records are
devoid of any objective evidence showing that the veteran was
exposed to mustard gas. There were no complaints or
treatment to include hospitalization for mustard gas exposure
in the service medical records to corroborate the testimony
of the veteran and his representative. There were no
complaints of exposure to mustard gas for a number of years
following service. The veteran was not on the list of those
who were known participants in mustard gas testing. Further,
the CDBCOM was unable to determine that the veteran was
exposed to mustard gas during training at Fort Eustis or that
he participated in mustard gas testing. CBDCOM indicated
that if the veteran had actually participated in gas chamber
training it was tear gas and chlorine--and not mustard gas--
that were the chemical agents used in such training. While
it has also been asserted by the veteran's representative in
the May 1998 hearing that the veteran was also exposed to
mustard gas at Fort Polk, Louisiana in December 1943, no
objective evidence has been provided to support this
assertion, and the veteran in prior statements never
described mustard gas exposure at Fort Polk. In short, there
is no objective evidence of exposure to mustard gas in
service. The veteran's wife and representative assert that
mustard gas was used in the veteran's training; however, the
evidence of record, to include excerpts from newsletters, DAV
Magazine, and The American Legion, and the veteran's chemical
warfare pocket reference card, do not substantiate the
veteran's claim of mustard gas exposure in service. In fact,
the veteran's representative indicated at the 1998 hearing
that the articles regarding mustard gas did not identify the
veteran specifically as having been exposed to mustard gas in
service. Although the representative testified that she had
worked around doctors for a number of years, she has offered
no evidence of her medical background or qualifications to
render an opinion concerning the etiology of the veteran's
COPD. Therefore, the Board does not view her opinion that
the veteran was exposed to mustard gas in service as
objective evidence of such exposure.
Given the state of the record, the Board finds no evidence to
corroborate the allegation of mustard gas exposure and
instead finds the probability of no mustard gas exposure to
be far more likely. The normal gas chamber training which
does not involve mustard gas seems to be much more likely as
suggested by CBDCOM. In view of the foregoing, the Board
finds that the preponderance of the evidence is against a
finding that the veteran had full body exposure to mustard
gas.
Although the record does not support a grant of service
connection under 38 C.F.R. § 3.316, service connection may be
granted if the record shows a current disability, incurrence
or aggravation of a disease or injury in service, and of a
nexus between the inservice injury or disease and the current
disability. See Rabideau v. Derwinski, 2 Vet. App. 141, 142-
143 (1992), or when all the evidence establishes that a
chronic disease was incurred in service, see 38 C.F.R. §
3.303(d). However, the evidence in this case does not
demonstrate that the veteran had a chronic respiratory
disease in service or that his current diagnosis of COPD is
attributable to service. In short, there is no evidence, lay
or medical, that the veteran's COPD was chronic since service
or attributable to mustard gas exposure.
Based on the entire record of evidence, the Board concludes
that the preponderance of the evidence clearly favors the
conclusion that the veteran's current COPD is not related to
service. Clearly, there is no basis to grant service
connection for COPD secondary to mustard gas exposure under
the provisions of 38 C.F.R. §§ 3.303 or 3.316. As such, the
veteran's claim must be denied.
The Board notes that records received by the Board in July
1998 were not previously considered by the RO in connection
with the instant appeal and were not accompanied by a waiver
of RO consideration. First, these records were submitted in
order to advance to veteran's claim on the docket and are not
pertinent to the issue at hand. Second, these records are
essentially duplicative of evidence that has been previously
considered by the RO regarding the veteran's medical
condition and military unit.
B. Claim for an Increased Rating
The Board is satisfied that all relevant facts have been
properly developed, and that no further development is
required to comply with the duty to assist the veteran as
mandated by 38 U.S.C.A. § 5107(a).
Under the applicable criteria, disability evaluations are
determined by the application of a schedule of ratings which
is based on average impairment of earning capacity.
38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic
codes identify the various disabilities. The Department of
Veterans Affairs has a duty to acknowledge and consider all
regulations which are potentially applicable through the
assertions and issues raised in the record, and to explain
the reasons and bases for its conclusions. Schafrath v.
Derwinski, 1 Vet. App. 589 (1991). These regulations
include, but are not limited to, 38 C.F.R. §§ 4.1 and 4.2
which require that each disability be viewed in relation to
its entire recorded history, that there be emphasis upon the
limitation of activity imposed by the disabling condition,
and that each disability be considered from the point of view
of the veteran working or seeking work. When there is a
question as to which of two evaluations shall be applied, the
higher evaluation will be assigned if the disability picture
more nearly approximates the criteria required for that
rating. Otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7.
Also, 38 C.F.R. § 4.10 provides that, in cases of functional
impairment, evaluations must be based upon lack of usefulness
of the affected part or systems, and medical examiners must
furnish, in addition to the etiological, anatomical,
pathological, laboratory and prognostic data required for
ordinary medical classification, full description of the
effects of the disability upon the person's ordinary
activity. These requirements for evaluation of the complete
medical history of the claimant's condition operate to
protect claimants against adverse decisions based upon a
single, incomplete, or inaccurate report, and to enable the
VA to make a more precise evaluation of the level of the
disability and of any changes in the condition. Schafrath, 1
Vet. App. at 594. Where an increase in the level of a
service connected disability is at issue, the primary concern
is the present level of disability. Francisco v. Brown, 7
Vet. App. 55 (1994).
Superficial scars that are poorly nourished with repeated
ulceration warrant a 10 percent evaluation. 38 C.F.R.
§ 4.118, Diagnostic Code 7803. Superficial scars, which are
tender and painful on objective demonstration, warrant a 10
percent evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7804.
Other scars are rated on the limitation of function of the
part affected. 38 C.F.R. § 4.118, Diagnostic Code 7805.
In this case, the veteran's service connected residuals of a
right chest injury is currently assigned a noncompensable
evaluation under the provisions of Diagnostic Code 7805 for
other scars. The diagnostic codes for scars provide a 10
percent rating for scars that are tender and painful or
poorly nourished. Otherwise, scars are rated on the
limitation of function of the part affected. On VA
examination in May 1996 a right posterior cervical scar was
noted, and on VA examination in January 1997 the veteran
reported that he was scarred on the posterior aspect of the
neck as a result of the jeep accident in service. However,
the Board notes that the veteran is not service connected for
any scars on the neck, as determined by the RO in a May 1960
rating action. Moreover, on VA examination in January 1997,
there was no scarring noted on the right side of the chest.
Instead, severe kyphosis of the thoracic spine was described.
The examiner, however, opined that the kyphosis was not a
result of the veteran's inservice jeep accident. Contrary to
the claims of the veteran and his representative, the veteran
did not sustain any rib fractures as a result of his chest
injury in service. The service medical x-ray evidence
revealed no fractures following the jeep accident and at
separation from service. Moreover, an x-ray of the chest in
April 1947 was again negative for evidence of a fracture. In
fact, the record reflects the onset of significant chest
pathology--albeit left chest residuals--from the veteran's
industrial accident in 1949.
It is contended by and on behalf of the veteran that the
veteran's lung problems were residuals of his service
connected right chest injury. The Board, however, concludes
that the evidence of record does not support this contention.
In service, x-rays revealed some density over the right lung
with slight obliteration of the right costophrenic angle.
There was also evidence of hemothorax from the chest injury.
However, the x-rays at separation from service and in the
several VA examinations following service do not reference
any defect or deformity in the right lung. Also, the veteran
denied any return of hemoptysis on the January 1997 VA
examination. Recent postservice records show that the
veteran had some scarring at the right lateral costophrenic
angle and a dorsal kyphotic curvature. The records show too
that the veteran suffered from a respiratory disorder, which
was most recently diagnosed as COPD. The VA examiner in
1997, however, opined that the kyphosis was not associated
with the jeep accident in service and that the COPD was most
likely related to the veteran's advancing age. It is also
noted that the examiner indicated that the fracturing of the
ribs in service based on the veteran's reported history--even
though the actual evidence in service did not show fractures-
-was not impairing the veteran's breathing function. In sum,
there is no medical evidence that the veteran's current
respiratory problems are residuals of his chest injury in
service.
Based on the entire record of evidence, the Board concludes
that a compensable rating is not warranted for the veteran's
service connected residuals of a chest injury. There is no
medical evidence of any current right chest pathology, to
include scarring as a result of the injury in service. The
veteran's lung problems have been diagnosed as COPD and are
shown to be unrelated to the right chest injury in service.
Given the foregoing, the preponderance of the evidence is
against the veteran's claim for an increased evaluation for
residuals of a right chest injury, and the claim is denied.
II. Increased Rating for PTSD
A review of the record shows that service connection for a
psychoneurosis, anxiety type, was granted in a January 1946
rating action of the RO and a 10 percent evaluation was
assigned. More recently, in a November 1983 rating action, a
30 percent evaluation was assigned for an anxiety disorder
under Diagnostic Code 9405 of the VA's Schedule for Rating
Disabilities (38 C.F.R. § 4.132 (1983)).
In a November 1991 statement, the veteran requested that his
service connected neurosis be reevaluated and stated that he
attended the mental hygiene clinic at the VA every four
weeks.
In January 1992, VA outpatient records dated from January
1991 to December 1991 were received. A May 1991 record shows
complaints of anxiety and sleeping difficulty. There was no
suicidal or homicidal ideation. The veteran was oriented
times four. His speech was relevant, his mood was reactive,
and his affect was broad. The assessment was depressive
neurosis. A December 1991 record shows a complaint of
nervousness. It was noted that the veteran was on medication
but that he was not sleeping and felt depressed. He was
worried about his grandson who was injured in a motor vehicle
accident. There was no suicidal ideation. He was alert and
oriented times four. The veteran's speech was relevant, his
mood was dysphoric, and his affect was anxious. The
assessment was depressive neurosis.
In January 1993, a VA hospital summary was received, which
shows that the veteran was hospitalized in November 1992 for
respiratory difficulty. The diagnoses included neurosis.
In June 1995, VA outpatient records dated from December 1992
to June 1995 were received. A January 1993 record shows a
complaint of anxiety at times with no specific stressor(s)
and insomnia. There was no suicidal or homicidal ideation.
The veteran was oriented times four. His speech was
relevant, his mood was reactive, and his affect was broad.
The assessment was anxiety not otherwise specified. In an
April 1993 record, the veteran reported that he was getting
more nervous during the day and had problems sleeping. He
was alert and oriented to time, place, and person. He was
casually dressed and neatly groomed. His speech was
coherent, his mood was anxious, and his affect was
constricted. There was no suicidal or homicidal ideation or
hallucinations. The assessment was neurosis. A July 1993
record shows that the veteran was oriented times four. His
speech was relevant, his mood was reactive, and his affect
was broad. There were no psychotic symptoms. The assessment
was anxiety neurosis. In a January 1994 record, the veteran
reported that his medications continued to benefit him in
sleep, mood, and anxiety. It was noted that he spent his
leisure time watching television, reading, and taking care of
pets. He was oriented times four. His speech was relevant,
his mood was reactive, and his affect was broad. He was
dressed neatly with spontaneous conversation. The assessment
was anxiety disorder. A May 1994 record shows that the
veteran was oriented times four. His speech was relevant,
his mood was reactive, and his affect was broad. The
assessment was anxiety, not otherwise specified. An August
1994 record shows that the veteran was oriented times four.
His speech was relevant, his mood was reactive, and his
affect was animated. He was dressed neatly and had good eye
contact. The veteran reported that the medication was
effective in decreasing his anxiety and improving his mood
and sleep. He spent his leisure time listening to the radio
and watching news broadcasts. The assessment was anxiety,
not otherwise specified. In a June 1995 record, the veteran
reported that he was not sleeping. His speech was relevant
and coherent, and his mood and affect were within normal
limits. The assessment was anxiety disorder.
On VA examination in May 1996, the veteran related
experiences in Europe during World War II. He complained of
being nervous on a regular basis. He reported that he was
occasionally able to recall events of World War II and had
nightmares and flashbacks of the war. He also related that
he had some temper and sleeping problems and was mildly
hypervigilant. He reported that he was employed as a public
accountant for many years and stopped working in 1989. No
psychiatric problems with work were described. On
examination, the veteran was casually groomed. He was
candid, polite, and responsive to all questions. His motor
activity was normal, and his eye contact was alert. The
quality of his speech was normal and relevant. He was
oriented to person, place, and time. His memory was intact,
and his intellectual functioning was estimated to be above
average. His mood was euthymic and his affect was broad.
The veteran reported that he did not presently have suicidal
or homicidal ideation, and he denied any psychotic symptoms.
His impulse control was contained. The veteran reported that
in the past he was "explosive" and related that he could
become verbally violent. His insight and judgment were good.
The diagnosis was PTSD (Axis I).
In a June 1996 rating decision, the RO denied an increased
rating for PTSD under Diagnostic Code 9411 of the VA's
Schedule for Rating Disabilities. It was noted in the
decision that the veteran's psychiatric disorder was
previously diagnosed and evaluated as generalized anxiety
disorder.
At a January 1997 hearing before a hearing officer at the RO,
the veteran testified that he lost his temper from one to
three times or more a day and that he sometimes relived
events of the war during the day. He stated that he had
become verbally and physically abusive of anyone who was
close to him, such as his wife. The veteran indicated that
he was on medication which helped to control some of his
symptoms. He stated that he took sleeping pills and that his
sleep varied from two hours to all night. He indicated that
three to four times a week he experienced nightmares about
the war and that he had problems with his memory and
concentration. For example, he forgot where he was going a
time or two. He did not eat out with his wife very often
because he did not have enough money, but he thought that it
would be nice. He did not go to the movies and watched a
little television. He stated that he did not have many
friends visit him at home and that days or weeks would pass
before he had a visitor. He indicated that his grandchildren
visited when they had an opportunity. The veteran stated
that he liked to be around people and that he often talked
with his neighbor.
On VA examination in January 1997, the veteran reported that
he had been nervous since service and that he became upset
easily and quickly. He reported a history of exaggerated
startle response. He also reported that three to four times
a week he had nightmares and woke up "hearing bombs drop".
He complained of intrusive thoughts about his military
experience on a regular basis. He reported that he had an
explosive temper and had become physically violent in the
past. He reported that there were times when he preferred to
be alone. It was noted that he isolated himself. He enjoyed
reading and sometimes read intentionally to isolate himself
from others. He reported that he was self-employed as a
public accountant and that he quit working in 1989 because he
"could not stand it anymore", indicating that he was very
nervous. On examination, the veteran appeared casually
groomed. He was candid, polite, and responsive to all
questions. His eye contact was alert. The quality of his
speech was normal and relevant. He was oriented to person,
place, and time. His memory was intact, and his intellectual
functioning was within the average range. His mood was
euthymic and his affect was broad. The veteran reported past
suicidal ideation but denied any current suicidal or
homicidal ideation or any psychotic symptoms. His impulse
control was contained. He reported a history of becoming
verbally and physically violent. His insight and judgment
appeared to be fair. The examiner stated that the veteran
appeared competent to handle any funds. The diagnosis was
PTSD (Axis I).
In a letter received in January 1997, the veteran's wife
indicated that she has been married to the veteran since 1947
and that he had always been able to fool people, especially
those who did not know him well. She stated that he was nice
when others were around but that he changed when nobody was
near. She indicated that the veteran had been physically
abusive to her and the family. She stated that nobody came
around much anymore and that the veteran had accused others
of stealing from him. He slept most of the time. She
related a few occasions when the veteran became lost when he
traveled away from home.
At a May 1998 hearing held in Washington, D.C. before the
undersigned member of the Board, the veteran's representative
testified that she had worked for a number of years with
neurologists, psychiatrists, and psychologists and had
witnessed the veteran's behavior over the years. It was her
belief that the veteran sustained a closed head injury when
he was run over by a jeep in service, as reflected by his
behavior over an extensive period of time. She indicated
that the veteran had a very low tolerance for noise, such as
the backfiring of a car and firecrackers, and that he reacted
strangely to such noises. She suspected that the veteran's
behavior was related to PTSD. She quoted from a supplemental
statement of the case dated in June 1997, which discussed the
criteria for a 100 percent rating under Diagnostic Code 9411
for PTSD, and stated that the criteria fit the veteran. She
indicated that the veteran had sleep problems and that he has
had problems with relationships both inside and outside the
family. She stated that beginning in 1965 she saw how
"stressed out" the veteran was in his job as a public
accountant and that his wife would have to cover for him in
the office when he would go home with a severe headache, a
problem with his shoulders and back, or a sore chest. She
indicated that by 1985 the veteran only worked part-time and
closed most of his offices.
The Board is satisfied that all relevant facts have been
properly developed, and that no further development is
required to comply with the duty to assist the veteran as
mandated by 38 U.S.C.A. § 5107(a).
As noted above in Part II in the reasons and bases for
findings and conclusions with respect to the issue of an
increased rating for residuals of a right chest injury, the
applicable criteria are contained in 38 U.S.C.A. § 1155 and
38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10. The analysis mandated by
the Court in Schafrath and the Court's holding in Francisco
are also for application.
Additionally, 38 C.F.R. §§ 4.129 and 4.130 (1996) provide
that social and industrial inadaptability are the basic
criteria for rating mental disorders. Social integration is
one of the best evidences of mental health and reflects the
ability to establish (together with the desire to establish)
healthy and effective interpersonal relationships. However,
in evaluating impairment, social inadaptability is to be
evaluated only as it affects industrial adaptability. 38
C.F.R. § 4.129 (1996). In evaluating psychiatric
disabilities, the severity of disability is based upon actual
symptomatology as it affects social and industrial
adaptability. Two of the most important determinants of
disability are time lost from gainful work and a decrease in
work efficiency. An emotionally sick veteran with a good
work record must not be underevaluated, nor must a veteran's
condition be overevaluated on the basis of a poor record not
supported by the psychiatric picture. 38 C.F.R. § 4.130
(1996).
The veteran's PTSD is rated in accordance with the general
rating formula for psychoneurotic disorders. 38 C.F.R.
§ 4.132, Diagnostic Code 9411. The schedular criteria
provide that a 50 percent evaluation is warranted where the
ability to establish or maintain effective or favorable
relationships with people is considerably impaired and where,
by reason of psychoneurotic symptoms, the reliability,
flexibility, and efficiency levels are so reduced as to
result in considerable industrial impairment. A 70 percent
evaluation is warranted where the ability to establish and
maintain effective or favorable relationships with people is
severely impaired and where psychoneurotic symptoms are of
such severity and persistence that there is severe impairment
in the ability to obtain or retain employment. A 100 percent
evaluation is warranted where the attitudes of all contacts
except the most intimate are so adversely affected as to
result in virtual isolation in the community; or where there
are totally incapacitating psychoneurotic symptoms bordering
on gross repudiation of reality with disturbed thought or
behavioral processes associated with almost all daily
activities such as fantasy, confusion, panic, and explosions
of aggressive energy resulting in profound retreat from
mature behavior; or where the individual is demonstrably
unable to obtain or retain employment.
Currently, the veteran's PTSD is rated at 30 percent. A 30
percent rating is warranted where there is definite
impairment in the ability to establish or maintain effective
and wholesome relationships with people and where the
psychoneurotic symptoms result in such reduction in
initiative, flexibility, efficiency and reliability levels as
to produce definite industrial impairment. In Hood v. Brown,
4 Vet. App. 301 (1993), the United States Court of Veterans
Appeals (Court) held that the term "definite" in 38 C.F.R. §
4.132 was "qualitative" in character, whereas the other terms
were "quantitative" in character, and invited the Board to
"construe" the term "definite" in a manner that would
quantify the degree of impairment for purposes of meeting the
statutory requirement that the Board articulate "reasons or
bases for its decision. 38 C.F.R. § 7104(d)(1). In a
precedent opinion dated November 9, 1993, the General Counsel
of the VA concluded that "definite" is to be construed as
"distinct, unambiguous, and moderately large in degree." It
represents a degree of social and industrial inadaptability
that is "more than moderate but less than rather large."
VAOPGCPREC 9-93 (November 9, 1993). The Board is bound by
this interpretation of the term "definite." 38 U.S.C.A.
§ 7104(c).
The Board notes that since the RO's rating decision in June
1996, the regulations pertaining to rating psychiatric
disabilities were revised effective November 7, 1996. The
Court has held that, where the law or regulation changes
after a claim has been filed or reopened but before the
administrative or judicial appeal process has been concluded,
the version most favorable to the appellant will apply unless
Congress provided otherwise or permitted the Secretary of
Veterans Affairs (Secretary) to do otherwise. Karnas v.
Derwinski, 1 Vet. App. 308, 313 (1991).
The revised regulations are cited, in pertinent part, below:
General Rating Formula for Mental
Disorders:
Total occupational and social impairment,
due to such symptoms as: gross impairment
in thought processes or communication;
persistent delusions or hallucinations;
grossly inappropriate behavior;
persistent danger of hurting self or
others; intermittent inability to perform
activities of daily living (including
maintenance of minimal personal hygiene);
disorientation to time or place; memory
loss for names of close relatives, own
occupation, or own
name.....................................
......100
Occupational and social impairment, with
deficiencies in most areas, such as work,
school, family relations, judgment,
thinking, or mood, due to such symptoms
as: suicidal ideation; obsessional
rituals which interfere with routine
activities; speech intermittently
illogical, obscure, or irrelevant; near-
continuous panic or depression affecting
the ability to function independently,
appropriately and effectively; impaired
impulse control (such as unprovoked
irritability with periods of violence);
spatial disorientation; neglect of
personal appearance and hygiene;
difficulty in adapting to stressful
circumstances (including work or a
worklike setting); inability to establish
and maintain effective
relationships............................
....................................70
Occupational and social impairment with
reduced reliability and productivity due
to such symptoms as: flattened affect;
circumstantial, circumlocutory, or
stereotyped speech; panic attacks more
than once a week; difficulty in
understanding complex commands;
impairment of short- and long-term memory
(e.g., retention of only highly learned
material, forgetting to complete tasks);
impaired judgment; impaired abstract
thinking; disturbances of motivation and
mood; difficulty in establishing and
maintaining effective work and social
relationships............................
...................50
Occupational and social impairment with
occasional decrease in work efficiency
and intermittent periods of inability to
perform occupational tasks (although
generally functioning satisfactorily,
with routine behavior, self-care, and
conversation normal), due to such
symptoms as: depressed mood, anxiety,
suspiciousness, panic attacks (weekly or
less often), chronic sleep impairment,
mild memory loss (such as forgetting
names, directions, recent
events).................30
38 C.F.R. § 4.130 (Effective November 7, 1996).
The Board also notes that, under the revised regulations when
evaluating mental disorders, the frequency, severity, and
duration of psychiatric symptoms, the length of remissions,
and the veteran's capacity for adjustment during periods of
remission should be considered. An evaluation is assigned
based on all the evidence of record that bears on
occupational and social impairment rather than solely on the
examiner's assessment of the level of disability at the
moment of examination. 38 C.F.R. § 4.126 (1997).
As detailed above, the regulations changed during the
pendency of the appeal, and the version most favorable to the
veteran will therefore apply. The Board notes that the
veteran was diagnosed with an anxiety disorder prior to the
VA examinations in May 1996 and January 1997 when he was
first diagnosed with PTSD. The veteran is currently being
evaluated under the old and revised criteria for PTSD, which
incidentally is the same criteria for rating anxiety
disorders. As shown below, the clinical findings do not
demonstrate that the veteran meets the criteria for an
increased rating under either the old or revised regulations.
In this case, the evidence of record consists of VA records,
hearing testimony, and a statement from the veteran's wife.
It is noted that the two VA examinations in 1996 and 1997 did
not provide a Global Assessment of Functioning (GAF) scale
score to indicate the veteran's overall level of social and
industrial functioning. However, in view of the fact that
the instant case was advanced on the docket due to serious
illness of the veteran and that the evidence of record is
otherwise deemed sufficient to rate the veteran's PTSD, it
would not be reasonable under the circumstances to order
another VA examination for the purpose of obtaining the GAF
score.
In order to meet the criteria for a 50 percent rating under
the old regulations the veteran would have to show that his
service connected PTSD symptoms were productive of
considerable social and industrial impairment, that is, his
ability to establish or maintain effective or favorable
relationships with people is considerably impaired and where,
by reason of psychoneurotic symptoms, his reliability,
flexibility, and efficiency levels are so reduced as to
result in considerable industrial impairment. In view of the
definition of "definite" impairment, discussed above, his
symptoms must exceed that level and more nearly approximate
considerable impairmant to warrant assignment of an increased
rating. The record reflects that the veteran quit working as
a self-employed public accountant in 1989, indicating on the
1997 VA examination that he was very nervous. On the 1996 VA
examination, he reported that he had worked for many years
and did not specify the reason that he quit working.
Although the veteran ceased working in 1989, the evidence
does not show that PTSD symptomatology contributed to a
considerable degree in his industrial impairment. As
discussed at length in Part I above, the record shows that
the veteran suffered from other disabilities to include a
respiratory disorder at the same time. His respiratory
disorder was becoming especially prevalent beginning in 1983,
several years before the veteran stopped working. At the
1998 hearing, the veteran's representative, his niece, stated
that beginning in 1965 she witnessed how the veteran's wife
had to cover for the veteran in the office when he went home
on account of a headache or a problem with his shoulder,
back, or chest. Her only reference to possible psychiatric
symptoms was that the veteran looked "stressed out" in his
job. There is no medical evidence in the record that the
veteran even sought and received psychiatric treatment
between 1983 and 1991, the period during which he stopped
working allegedly due to his nervousness. An August 1983
psychiatric evaluation report by the Prestera Center for
Mental Health Services noted that the veteran was working
part-time at his accounting practice because, by the
veteran's report, business was down as he could not keep up
at the same pace as he had in the past. The veteran did not
report any psychiatric problems with work at that time. In
view of the record as a whole, it does not appear that the
veteran's psychiatric disability was the sole and significant
reason for his industrial impairment.
VA outpatient records dated from 1991 to 1995 demonstrate
that the veteran's most common complaints were anxiety and
sleeping difficulty. On the 1996 VA examination, the veteran
complained of regular nervousness, some temper and sleeping
problems, and occasional nightmares and flashbacks. It is
not evident that such complaints were indicative of social
impairment that was more than moderately large in degree. On
the 1997 VA examination, the veteran reported that he
preferred to be alone at times, and according to the
veteran's wife in a January 1997 statement and his
representative at the 1998 hearing he had problems with
people. Nevertheless, the veteran stated in the 1997 VA
examination that, although his friends did not often visit
him, he liked to be around people, and he mentioned visits by
his grandchildren and his neighbor. Although the veteran
indicated on the 1997 examination that he preferred to be
alone at times, this assertion is not necessarily indicative
of impairment in the ability to establish or maintain
effective and wholesome relationships with people. Also, the
record shows that the veteran has maintained a marital
relationship with his current wife since 1947. It does not
appear that the veteran's social impairment can be evaluated
as considerable in light of the references to friends and
relatives who visit him and of his lengthy marital
relationship. Given the foregoing evidence of the veteran's
social and employment history, the Board finds that the
veteran's PTSD is productive of no more than a definite
impairment in social and industrial functioning, that it is
more than moderate, but less than rather large and more
closely approximates the 30 percent rating currently
assigned.
Additionally, the veteran does not meet the other criteria
under the revised regulations for a 50 percent rating. That
is, there is no objective evidence that his service connected
PTSD symptomatology produced occupational and social
impairment with reduced reliability and productivity due to
such symptoms as: flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks more
than once a week; difficulty in understanding complex
commands; impairment of short- and long-term memory (e.g.,
retention of only highly learned material, forgetting to
complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing and maintaining effective work and social
relationships. VA outpatient records dated from 1991 to 1995
reflect that he was oriented times four and that his speech
was relevant. The VA examination in 1996 does not reveal any
findings of impairment in memory or judgment or of difficulty
in understanding complex commands. In fact, the veteran's
intellectual functioning was estimated to be above average.
He complained that he was often nervous, but the findings do
not show that he experienced panic attacks. His mood was not
disturbed. His speech was considered normal and relevant,
and he was oriented to person, place, and time. Likewise,
the most recent VA examination in 1997 does not reveal
findings consistent with the criteria for a 50 percent
rating. In fact, the 1997 findings hardly varied from those
of the 1996 examination, except that the veteran's judgment
appeared to be fair instead of good and his intellectual
functioning was estimated to be in the average range instead
of above average. Although the 1997 examination report noted
that the veteran preferred to be alone at times, there was no
indication that he had any difficulty in establishing and
maintaining relationships, and the veteran was shown to be
candid and polite during the interview. The veteran's
representative indicated at the hearing that the veteran had
relationship problems inside and outside of the family.
However, it is not apparent how these problems affected the
veteran's ability to establish and maintain social
relationships. In view of the foregoing, the Board finds
that the veteran's PTSD symptoms are more consistent with the
criteria for a 30 percent disability rating and do not more
nearly approximate the criteria for a 50 percent rating under
the revised PTSD regulations.
The Board has noted that the testimony of the veteran's
representative that she had worked for a number of years with
neurologists, psychiatrists, and psychologists and that the
veteran's behavior was related to PTSD and fit the criteria
for a 100 percent rating under the rating schedule. However,
there is no evidence in the record which describes the
representative's medical qualifications and expertise to
offer such opinions. Therefore, her testimony is not
regarded as competent medical evidence in evaluating the
veteran's PTSD.
Based on the objective evidence of record and the testimony
of the veteran and his representative, the Board concludes
that the veteran's PTSD does not more nearly approximate the
criteria for a 50 percent rating under Diagnostic Code 9411
under either the old or revised regulations. The
preponderance of the evidence is against the claim for an
increase.
ORDER
Entitlement to service connection for COPD due to mustard gas
exposure is denied.
Entitlement to a compensable rating for residuals of a right
chest injury is denied.
Entitlement to an increased rating for PTSD is denied.
STEVEN L. COHN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.